Partly allowed

Ajesh Kumar.K v. Manager, Oriental Insurance Co. Ltd.

Kerala HC20 Jun 2018MACA/1432/2018

Case brief

AI extract

What is this about?

This appeal challenged the Motor Accidents Claims Tribunal's award of Rs.1,42,700 for permanent disability. The Court increased the compensation to Rs.1,78,030 due to underestimation of the claimant's income and inadequacy in awards for loss of amenities and other heads of damages.

What did the court decide?

Directed the insurer to pay an additional compensation of Rs.35,330 with 8% interest, making the total award Rs.1,78,030.

Ajesh Kumar.K Vs Manager, Oriental Insurance Co. Ltd. — Motor Accident Claims | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶4

WEDNESDAY, THE 20TH DAY OF JUNE 2018 / 30TH JYAISHTA, 1940

¶5

MACA.NO. 1432 OF 2018

¶6

AGAINST THE AWARD IN O.P.(M.V.) NO.228/2013 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 29-12-2017

¶7

APPELLANT(S)/PETITIONER :

¶8

AJESHKUMAR.K., S/O. KUTTAPPAN, PULICKAPARAMBIL @ PALLICKAPARAMBIL, KOTTAMURI P.O., THRIKODITHANAM P.O., CHANGANCHERRY.

¶9

BY ADVS.SMT.SIJI K.PAUL SRI.P.M.JOSHI

¶10

RESPONDENT(S)/3^RD RESPONDENT :

¶11

MANAGER, ORIENTAL INSURANCE CO. LTD., KOTTAYAM, KOTTAYAM-1.

¶12

BY SMT.K.S.SANTHI

¶13

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20-06-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

¶15

P.D. RAJAN, J.

¶16

M.A.C.A. No.1432 of 2018

¶17

Dated this the 20^th day of June, 2018

¶18

J U D G M E N T

¶19

This appeal is preferred against the award in O.P.(M.V.) No.228 of 2013 of the Motor Accidents Claims Tribunal, Kottayam by the injured. Appellant sustained injuries in a motor accident on 01.11.2012 and the learned Tribunal awarded compensation of Rs.1,42,700/(Rupees One Lakh Forty Two Thousand Seven Hundred only) with 8% interest and proportionate cost. Being aggrieved by that, the injured preferred this appeal.

¶20

Appellant's case in the lower court was that on 01.11.2012 while he was riding a motorcycle KL-33/D-5574 and when he reached at Kilimala, a JCB KL-24/B-1793 hit against the motorcycle as a result, he sustained serious injuries. The driver and owner were ex parte in the lower court. The insurer admitted the insurance of the vehicle. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A6. Ext.X1, Disability Certificate was marked as Court

¶21

M.A.C.A. No.1432 of 2018 2

¶22

Exhibit.

¶23

Learned counsel appearing for the appellant contended that the injured was a Heavy Vehicle Driver and was getting Rs.12,000/- per month, but the learned Tribunal took only Rs.6,000/- as his monthly income for calculating compensation. Moreover, meagre amount was awarded towards loss of amenities.

¶24

In permanent injury case, the injured is entitled to get higher income than that in death case. The damages are to be assessed separately as pecuniary and special damages. The object is to compensate injury so far as money can compensate. When compensation is to be awarded for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken into account. Amount of compensation for nonpecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. In Yadava Kumar v. D.M. National Insurance Co. Ltd.

¶25

M.A.C.A. No.1432 of 2018 3

¶26

[2010 (8) SCALE 567] Apex Court reiterated the principle in relation to the assessment of damages for

¶27

personal injuries cases as follows:

¶28

“ We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered.

¶29

In some cases for personal injury, the claim could be in respect of lifetime's earning lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases, and that is now recognised mode as to the proper measure of compensation-is taking an appropriate multiplier of an appropriate multiplicand.”

¶30

The assessment of compensation in

¶31

permanent disability cases would differ from person to person according to the nature of injury. Vast discretion is vested with the court for assessment of just compensation in injury cases. There can be no uniform

¶32

M.A.C.A. No.1432 of 2018 4

¶33

standard and yardstick provided for assessing such compensation. When two persons sustain similar injury that can attract the same compensation, but the heads under which, compensation can be attributed are truly amazing. The scope for awarding general damages and special damages are too wide for articulation. It is settled law that compensation for injury claims would be higher than that in death cases. The reason is that the injured has to suffer disability for the remaining period of his life. Generally in practical terms it is found that discretion vested in assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case.

¶34

It is true that the appellant is a heavy vehicle driver. Ext.A6 is the copy of the driving licence. Ext.X1 is the disability certificate which shows 3% permanent disability. Apex Court in Dixit Kumar and Ors. Vs. Om Prskash Goel [2017 ACJ 2057] held that, in the absence of any contra evidence, the income stated by the claimant has to be considered. In view of the above

¶35

M.A.C.A. No.1432 of 2018 5

¶36

decision, I fix Rs.9,000/- as his monthly income. The injured was aged 30 years at the time of accident and the multiplier is 17. Hence, he is entitled to get Rs.55,080/(9000x12x17x3%) for Permanent Disability. The Tribunal awarded Rs.36,750/- on that head and the balance is Rs.18,330/-. Loss of earning for Five months Rs.45,000/(9000x5). Tribunal awarded Rs.30,000/- and the balance is Rs.15,000/-. In addition to that, an amount of Rs.2,000/is awarded for Extra Nourishment. The learned counsel had a contention that meagre amount was awarded for Loss of Amenities. The Tribunal awarded Rs.20,000/- for Loss of Amenities hence no further increse on that head is necessary. Therefore, the appellant is entitled to get an additional compensation of Rs.35,330/- (Rupees Thirty Five Thousand Three Hundred and Thirty only) with 8% interest per annum from the date of petition till realization with proportionate cost in addition to Rs.1,42,700/- (Rupees One Lakh Forty Two Thousand Seven Hundred only) awarded by the learned Tribunal. The insurer is directed to satisfy the award within a

¶37

M.A.C.A. No.1432 of 2018 6

¶38

period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default.

¶39

M.A.C.A is disposed of as above.

¶40

Sd/-

¶41

P.D. RAJAN, JUDGE /True Copy/

¶42

¶43

P.A. To Judge

Ajesh Kumar.K v. Manager, Oriental Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Ajesh Kumar.K v. Manager, Oriental Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Johny K.O Vs Biji Anilkumar

Future General India Insurance Company Limited Vs Jayasree.I.a

National Insurance Company Ltd. Vs Santhosh

The Oriental Insurance Company Ltd. Vs Preetha Tillu

Umaiban @ Umaibanu Vs K.P.Prabhakaran

Sajeevan Vs the Director General of Police